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2011 DIGILAW 452 (GAU)

Asha Agarwal v. Ravindra & Co.

2011-05-25

H.BARUAH

body2011
JUDGMENT H. Baruah, J. 1. In challenge is the order dated 9-12-2009 passed by District Judge, Jorhat in Misc, (J) Case No. 178 of 2008 arising out of Title Suit No. 3 of 2008 filed by the appellants herein as plaintiff's whereby and whereunder the application filed under Order 39 Rule 1 and 2 read with Section 135of the Trade Marks Act, 1999 has been dismissed. 2. As it appears the application as indicated above has been primarily dismissed on two grounds, namely: (i) dissolution of the partnership firm; and (ii) for want of jurisdiction. 3. The appellants being aggrieved by and dissatisfied with the impugned order have preferred this appeal on various grounds among others the following: (i) that the learned District Judge, Jorhat erred in law as well as in facts in rejecting the application holding the same not maintainable; (ii) that the learned District Judge, Jorhat committed error in holding that the District Judge at Jorhat does not have jurisdiction under Section134(2) of the Trade Marks Act, 1999. The learned District Judge also committed error in holding that no cause of action has arisen within the jurisdiction of the court for want of passing off the materials. Section134(2) of the Trade Marks Act, 1999 creates an additional jurisdiction to the plaintiff to file a suit at the place they reside, carry on business or work for gain in addition to the jurisdiction provided under the code of Civil Procedure and there being infringement of trade mark and passing off at Jorhat due to sale of the products with the identical trade mark and identical package, cause of action having arisen at Jorhat, the court at Jorhat has jurisdiction to try the suit. The learned District Judge while passing the impugned order did not consider this aspect of the matter and accordingly passed the impugned order erroneously and illegally, which deserves to be set aside and quashed; (iii) that the respondent No. 2 being the resident at Jorhat and the offending goods being distributed by her manufactured by defendant No. 1 with deceptive identical trade mark, the court at Jorhat has jurisdiction to try the suit and the finding of the learned District Judge that jurisdiction is doubtful is absolutely incorrect and for that the impugned order dated 9-12-2009 is also liable to be set aside; (iv) that the appellants having been using the trade mark "Bandar Dholak Chhap" since 1986 and there being an agreement for use of the trade mark with the respondent No. 3, which prompted the appellants to withdraw the application for registration and the judgment of the Delhi High Court, which refused grant of injunction against the appellants on the application of respondent No. 3, these facts having not been considered by the learned District Judge, the findings of the learned District Judge that the appellants have failed to establish a prima facie case are erroneous and illegal; (v) that the learned District Judge also committed error and illegality In applying the provision of Section 43 of the Trade Marks Act, 1999; (vi) that the learned District Judge also failed to consider the constitution of the partnership firm with effect from 21st June, 2008, Thus, finding that the suit is not maintainable Inasmuch as at the time of filing the suit and the application, no partnership firm was existent under the name and style "M/s. Ravindra &. Co." is erroneous. Section 135 of the Trade Marks Act, 1999 specially provides for reliefs which court can grant. Injunction is one of them and the defendant respondent No. 2 having not denied the sale of the products in identical trade marks at Jorhat, the balance of convenience is in favour of the appellants. The appellants for such sale suffer from irreparable loss and injury and loss of good will. Injunction is one of them and the defendant respondent No. 2 having not denied the sale of the products in identical trade marks at Jorhat, the balance of convenience is in favour of the appellants. The appellants for such sale suffer from irreparable loss and injury and loss of good will. The learned District Judge, while passing the Impugned order failed not take into consideration of these facts and also the law and erroneously refused to grant injunction; (vii) that the learned District Judge also failed to consider the payment of royalty up to 2015 by the appellants to the respondent No. 3 per agreement entered into between them. When the agreement is subsisting with the appellants up to 2015, the learned District Judge, is wrong in holding that there is no violation of trade mark and, therefore, no objection could be granted, the appellants having prima facie case and balance of convenience in their favour and on account of sale of the goods with identical trade mark at Jorhat by the respondent No. 2 have been sustaining loss, the learned District Judge committed error and illegality in dismissing the application under Order 39 Rule 1 and 2. 4. For the purpose of disposal of this appeal we must confine ourselves to the facts appearing in the face of the record: Respondent No. 3 herein, M/s. J.M. Agarwal Tobacco Pvt. Ltd. was a manufacturer of tobacco (khani) situated at Kaimganj, U.P. and it was using a registered trade mark "Bandar". In the year 1992, partnership firm "M/s. Ravindra & Co." was constituted with two persons, namely, Ravindra Agarwal and Smt. Sarita Agarwal having 50% share in it. Appellant No. 1, Mrs. Asha Agawal, w/o. Surendra kr. Agarwal of kaimganj was inducted into the partnership firm "M/s. Ravindra & Co." and each person having had the share 35%: 35%: 30% respectively. The aforesaid firm M/s. Ravindra & Co. was using the trade mark "Bandar Dholak Chhap" since 1986 and for the purpose of registration of trade mark as indicated above they filed an application before the Registrar, which was opposed by the respondent No. 3 herein, being the owner of the trade mark "Bandar". Thereafter an agreement was entered into dated 1-4-2000 in between the partners of the firm and respondent No. 3, whereunder the respondent No. 3 allowed the partners of M/s. Ravindra & Co. Thereafter an agreement was entered into dated 1-4-2000 in between the partners of the firm and respondent No. 3, whereunder the respondent No. 3 allowed the partners of M/s. Ravindra & Co. to use the trade mark "Bandar Dholak" with devise of Monkey sitting on the Dholak. The aforesaid agreement remained valid till 31-3-2002. However, the aforesaid agreement was renewed from time to time on payment of royalty of Rs. 11,000/- plus interest up to 2015. As per the aforesaid agreement, the-respondent No. 3 was prohibited not to give any license to any other person, firm, party during the continuance of the agreement with the appellants. 5. Respondent No. 1, M/s. Arbind & Co. of which Arbind Kumar Agarwal, Ankit Agarwal; Rohit Agarwal and Smt. Beena Agarwal are the partners is also carrying-business on manufacture and sale of tobacco at Farrukhabad, U.P. while respondent No. 2 is the stockist of the respondent No. 1, who has been allegedly selling goods under the impugned trade mark within the jurisdiction of the Court of District Judge, Jorhat. The respondents by adopting the identical trade mark are committing fraud on the public and by selling inferior quality are also damaged the goodwill, name and reputation of the appellants. On these facts and infringement of trade mark, and passing off, the appellants as plaintiff's filed the Title Suit No. 3 of 2008 for a decree of permanent injunction alongwith an application for grant of temporary injunction under Order 69 Rule 1 and 2 for restraining the respondents, their servants, agents, stockist etc. from using the trade mark deceptively similar to the appellant's trade mark "Bandar Dholak Chhap". 6. The aforesaid applications under order 39 Rule 1-2 has been resisted by the respondents by filing written objection, wherein it is inter alia contended that the application is not maintainable and three golden principle are not in favour of the appellant rather are in favour of the respondents herein. It is also contended that the appellants will not suffer any irreparable loss or injury and further the District Judge has no jurisdiction to decide the suit as well as the application under 39 Rule 1 and 2. 7. It is also contended that the appellants will not suffer any irreparable loss or injury and further the District Judge has no jurisdiction to decide the suit as well as the application under 39 Rule 1 and 2. 7. On the pleadings of both the parties, learned District Judge-by the impugned order dismissed the application under Order 39 Rule 1 and 2 holding that the firm was not in existence at the time of filing of the suit, the same being dissolved on and from 20-6-2008 if not at least from 15-7-2008. That no cause of action having arisen at Jorhot, the District Judge at Jorhat does not have jurisdiction to try the suit as well as the application under Order 39 Rule 1 & 2. 8. The suit as indicated above was filed by the appellants primarily on the ground of use of the trade mark by the respondents deceptively similar to the trade mark of the appellants and also on account of passing off the goods. 9. We have heard Mr. G.N. Sahewalla, learned Sr. counsel and Mr. C. K. Sarma Baruah, learned Sr. counsel for the respondents assisted by their unions. 10. In support of the appeal Mr. G.N. Sahewalla, learned Sr. counsel submitted before this court that the partnership firm under the name and style M/s. Ravindra & Co. is still in existence, the same having been re-constituted by appellant No. 1 with her husband, Surendra Kr. Agarwal. The partnership firm was reconstituted by virtue of partnership deed executed on 1-12-2008 between the appellant No. 1 and her husband, Sri Surendra Kumar Agarwal making it effective from 5th July 2008 which was subsequently modified vide Deed of Rectification dated 8-12-2008, whereby the partnership was given effect on and from 21st day of June, 2008. It was also submitted by him that after (sic)ation of two other persons, namely, Ravindra Kr. Agarwal and Sarita Agarwal., the appellant alongwith her husband continued the partnership business although no formal partnership deed was executed between them until 1-12-2008. It was, therefore, argued by Mr. G.N. Sahewalla that at no point of time the partnership firm M/s. Ravindra & Co stood dissolved on account of dissociation of two other partners, namely, Ravindra Kr. Agarwal and Sarita Agarwal. It was argued further that the other partners of partnership firm Ravindra & Co. It was, therefore, argued by Mr. G.N. Sahewalla that at no point of time the partnership firm M/s. Ravindra & Co stood dissolved on account of dissociation of two other partners, namely, Ravindra Kr. Agarwal and Sarita Agarwal. It was argued further that the other partners of partnership firm Ravindra & Co. who dissociated themselves with a mala fide intention created another partnership firm under the name and style "M/s. Arvind & Co." of which Arvind Kr. Agarwal, S/o. Late Haris Chandra Agarwal, Smt Beena Agarwal, W/o, Ravindra Kr. Agarwal, Sri Ankit Agarwal, S/o. Arbind Kr. Agarwal and Rohit Agarwal, S/o. Ravindra Kr. Agarwal are the partners and in order to take away the business of the appellant having entered into a conspiracy with respondent No. 3 filed a suit being No. CS (OS) No. 1140 of 2008 in the Delhi High Court alongwith an injunction petition praying restrainment of the appellants from carrying business of manufacture, marketing, selling of chewing tobacco under the trade mark "Bandar Chhap". Though initially an interim injunction granted, the same was vacated by the Delhi High Court vide judgment dated 29-5-2009. The Hon'ble Delhi High Court refused to believe the letter dated 28-3-2007 filed by the respondents herein in their affidavit showing payment of fee to the respondent No. 3 at the rate of Rs. 31,000/-, the same having been found to be fabricated in collusion with the earlier partner of the appellant No. 2. The aforesaid Judgment dated 29-5-2009 passed by the Delhi High Court by a Single Judge is put under challenge before a division bench, which is still pending. It was contended further by Mr. G.N. Sahewalla, learned Sr. counsel that the division bench of the Delhi High Court also refused to pass an interim order in favour of the respondents. It was also argued by Mr. Sahewalla, learned Sr. counsel that neither the respondent No. 3 nor the respondent No. 1 made any discloser before the trial court regarding execution of any agreement in between them in respect of user of the trade mark by the respondent No. 1 in any form whatsoever to the injunction petition, but for the first time it has produced agreement dated 14-7-2008 regarding using of trade mark "Bandar Dhoiak Chhap" which fact cannot be considered at this stage. The main ground taken by the respondent Nos. The main ground taken by the respondent Nos. 1 and 2 are in respect of jurisdictional point and the learned District Judge was pleased to reject the application by order dated 14-7-2009 which prompted the appellants to approach this court by filing FAO No. 11 of 2009. This court by judgment and order dated 3-11-2009 after setting aside the impugned order remanded the case to the trial court to decide it afresh. The trial court however, after remand again dismissed the injunction application by the impugned order on the ground of dissolution of the firm and filing of the suit on 10-9-2008 by a non-existent firm and also on the ground of want of jurisdiction under Section 134 of the Trade Marks Act, 1999. 11. Contrary to the submission advanced by Mr. G.N. Sahewalla, learned Sr. counsel, Mr. C.K. Sarma Baruah learned Sr. counsel strenuously submitted that suit having been filed by a non existent firm, the application under Order 39 Rule 1 and 2 filed alongwith the suit by the appellants herein, the suit as well as the application for temporary injunction would not be maintainable. Mr. C.K. Sarma Baruah in support of his contention submitted that partnership firm M/s. Ravindra & Co. was initially constituted by two partners, namely, Sri Ravindra Kr. Agarwal and Smt. Sarita Agarwal having 50% share each in it on 1-4-1992. Subsequently, appellant No. 1, Mrs. Asha Agarwal was inducted into the partnership firm as indicated above as one of the partners. The partnership firm M/s. Ravindra & Co. was dealing with the business of manufacture of tobacco under the trade name "Bandar Dhoiak Chhap". The Partners of the aforesaid firm while filed an application for registration of the trade mark "Bandar Dholak" proforma respondent No. 3, M/s. J.M. Agarwal Tabacco Co. Pvt. Ltd. raised objection. Thereafter an agreement was entered into between one, the respondent No. 3 and M/s. Ravindra & Co. for use of unregistered trade mark "Bandar Dholak Chhap" subject to payment of Rs. 11,000/- as royalty per annum for three years. The aforesaid agreement was renewed from time of time and lastly renewed up to 31-1-2007 upon payment of Rs. 31,000/- annually. In the meantime a new partnership firm was constituted under the name and style M/s. Arvind & Co. with the following partners, namely, Arvind Kr. Agarwal, Smt Beena Agarwal, Ankit Agarwal and Rohit Agarwal. The aforesaid agreement was renewed from time of time and lastly renewed up to 31-1-2007 upon payment of Rs. 31,000/- annually. In the meantime a new partnership firm was constituted under the name and style M/s. Arvind & Co. with the following partners, namely, Arvind Kr. Agarwal, Smt Beena Agarwal, Ankit Agarwal and Rohit Agarwal. None of the partners is connected with the business of M/s. Ravindra & Co. 12. On 4-7-2008, the partners namely, Ravindra Kr. Agarwal and Smt. Sarita Agarwal by their letters dated 4-7-2008 retired from the partnership firm and declared that that firm M/s. Ravindra & Co. stood dissolved on and from 20-6-2008, remaining partner Smt. Asha Agarwal also retired from the firm with effect from 15-7-2008. Mr. Sarma Baruah, therefore, submitted that on account of retirement of the partners of M/s. Ravindra & Co. from the date as indicated therein, the partnership firm M/s. Ravindra & Co. stood dissolved on and from 20-6-2008, if not from 15-7-2008, the date on which the appellant No. 1 retired from the partnership firm. Therefore, the suit instituted by the appellants as plaintiff cannot stand in law and also their application arising out of the suit. It was submitted by him that the learned District Judge, Jorhat did not commit any error or illegality in holding that the suit was filed by a non-existent partnership firm, the partnership firm having stood dissolved on account of retirement of the partners, institution of the suit before the District Judge would not be maintainable. Suit was admittedly filed by the appellants on 10-9-2008 and the same was registered on 11-9-2008. The partnership firm being dissolved on the date as indicated herein before no suit can be filed by a dissolved partnership firm on a subsequent date and asked for temporary injunction against the respondents. It was argued by Mr. C.K. Sarma Baruah that on 14-7-2008 proforma defendant No. 3 entered into a licence agreement with M/s. Arvind & Co. for use of trade mark "Bandar Dholak Chhap" for two years in the meantime, subject to payment of royalty at the rate of Rs. 31,000/- annually. According to Mr. C.K, Sarma Baruah, learned Sr. counsel for the respondents, the dissolution of the partnership firm M/s. Ravindra & Co, cannot be in dispute. 13. for use of trade mark "Bandar Dholak Chhap" for two years in the meantime, subject to payment of royalty at the rate of Rs. 31,000/- annually. According to Mr. C.K, Sarma Baruah, learned Sr. counsel for the respondents, the dissolution of the partnership firm M/s. Ravindra & Co, cannot be in dispute. 13. During pendency of the suit and the application for injunction, the appellant No. 1 Smt. Asha agarwal alongwith her husband Mr. Surendra Kr, Agarwal formed a partnership firm in the name of M/s. Ravindra & Co. which stood dissolved on account of retirement of the partners including the appellant No. 1. On the constitution of partnership firm as indicated above by the two partners as aforesaid use of trade mark Bandar Dholak was never allowed by the respondent No. 3, M/s. J.M. Agarwal Tabacco Co. Pvt. Ltd. to M/s. Ravindra & Co, It was submitted strenuously that after dissolution of the earlier partnership firm under the name and style M/s. Ravindra & Co. Smt. Asha Agarwal would be at liberty to constitute a new partnership firm with some other partners in a different name, but not in the name, of dissolved partnership firm. Continuance of the nomenclature of the partnership firm under the dissolved firm's name would be illegal on the part of the appellants. Further to strengthened his (Mr. C.K. Sarma Baruah) argument reliance was placed in the letter dated 15-7-2008 addressed to the Range Superintendent, Central Excise range, Kaimganj by appellant No, 1 and also a letter dated 18-8-2008 addressed to M/s. S.K. Agencies, wherein it was indicated that the partnership firm M/s. Ravindra & Co. stood dissolved on 15-7-2008 on account of retirement of the partners. The partnership firm M/s. Ravindra & Co. being a partnership at will the partners thereto made dissolved the partnership firm by giving notice to other partners indicating his or her intention to dissolve the firm. It was argued that Smt. Sarita Agarwal and Ravindra Kr. Agarwal both by their letters dated 4-7-2008 retired from the partnership firm and expressed their intention of dissolving the partnership firm with effect from 20-6-2008. All these facts in combination, it was argued by Mr. C.K. Sarma Baruah would go to show that the firm was dissolved on and from 20-6-2008 if not at least from 15-7-2008. Agarwal both by their letters dated 4-7-2008 retired from the partnership firm and expressed their intention of dissolving the partnership firm with effect from 20-6-2008. All these facts in combination, it was argued by Mr. C.K. Sarma Baruah would go to show that the firm was dissolved on and from 20-6-2008 if not at least from 15-7-2008. Appellant No. 1 when indicated the dissolution of the partnership firm in her letter dated 15-7-2008 other two partners retiring earlier through their letters dated 4-7-2008, partnership firm M/s. Ravindra & Co. would no longer be in existent. It was also argued by Mr. C.K. Sarma Baruah that the partnership firm constituted newly by execution of a partnership deed on 1-2-2008, the dissolved partnership firm cannot be revived giving retrospective effect on and from 21-6-2008. When all the partners of a partnership firm M/s. Ravindra & Co. indicating their intention of dissolution of their firm with effect from 20-6-2008 if not from 15-7-2008, there would be no impediment to consider rather hold that M/s. Ravindra & Co. is a non existent firm. Therefore, the title suit instituted before the court of District Judge, Jorhat by non-existent firm and application filed thereunder would not be maintainable. 14. In respect of territorial jurisdiction of the District Judge, Jorhat, it was argued by Mr. C.K. Sarma Baruah that for infringement of trade mark as suit can be filed before a District Court under Section 134 of the Trade Marks Act, 1999. Such suit can be instituted (a) for the infringement of a registered trade mark; or (b) relating to any right in a registered trade mark; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered having jurisdiction to try the suit. By Sub-Section 2 of Section 134 of the Act an alternative forum is also provided to the persons instituted the suit for proceeding, which speaks for that a District Court within the local limits of whose jurisdiction at the time of institution of a suit for other proceeding or the persons instituting the suit or proceeding or where there are more than one such persons any of them actually and voluntarily resides or carries on business or personally works for gain. This Section, however, does not take away the provisions of Section 20 of the CPC, Section 20 of the CPC says as follows: 20. Other suits to be instituted where defendants reside or cause of action arises. -- Subject to the imitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any or the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Therefore, a suit under the CPC can be instituted in a court within the local limits of whose jurisdiction, the defendant or each of the defendants where there are more than one actually and voluntarily resides or carries on business or personally works for gain and cause of action wholly or in part arises. The respondents herein except respondent No. 2 are all resident of Kaimganj, UP and they are carrying on business there at. Therefore, the appellants could have filed the suit within the local limits of the court under whose jurisdiction the defendants are residing or carrying on business or personally works for gain. Section 134 of the Trade Marks Act, 1999 also provide such a Jurisdiction for infringement of registered trade mark or relating to any right in a registered trade mark or for passing off with an additional forum as provided under Sub-Section 2 of Section134 of the Trade Marks Act. The suit as indicated above as filed before the District Judge, Jorhat on the ground of passing off. It is contended in the suit that the defendant No. 2 being the stockist of the goods of the defendant No. 1 is selling the goods with an identical trade mark of the plaintiff's' trade mark to the customers. The suit as indicated above as filed before the District Judge, Jorhat on the ground of passing off. It is contended in the suit that the defendant No. 2 being the stockist of the goods of the defendant No. 1 is selling the goods with an identical trade mark of the plaintiff's' trade mark to the customers. Since the goods manufactured by defendant No. 1 having a trade mark identical to the trade mark of the appellants are selling or passing off at Jorhat, cause of action also has arisen at Jorhat and therefore, the suit has been instituted in the court of District Judge, Jorhat It was argued by Mr. C.K. Sarma Baruah, learned counsel for the respondents that the respondent No. 2 is merely a stockist and there being no passing off of the articles/goods manufactured by the respondent No. 1, therefore, no cause of action arises either partly or wholly at Jorhat and, therefore, the appellants would not be entitled to institute a suit before the court of District Judge at Jorhat. 15. Section 134 of the Trade Marks Act, 1999 also provides reliefs in suit for infringement or passing off, injunction is one of such relief. It was further argued by Mr. O.K. Sarma Baruah that the appellants have not resorted to the provision of Sub-Section 2 of Section 134 of the Trade Marks Act, 1999, which gives additional forum to the persons instituting the suit where such persons or any of them actually or voluntarily resides or carrying on business or personally works for gain. Mr. C.K. Sarma Baruah, therefore, submitted before this court that the learned District Judge committed no error and illegality in dismissing the application under Order 39 Rules l and 2CPC. 16. Mr. C. K. Sarma Baruah, learned Sr. counsel further in the context of jurisdiction submitted that except the respondent No. 2 all other respondent are resident of Kaimganj district, Farrukhabad, U.P. The suit having been filed in the court of District Judge, Jorhat against all the respondents, the appellants ought to have obtained leave of the court to file the suit at Jorhat. On account of filing of the suit against the non-resident respondent, namely, respondent No. 1. On account of filing of the suit against the non-resident respondent, namely, respondent No. 1. Respondent No. 2 is no doubt a resident of Jorhat and, therefore, the appellant would not be at liberty to institute a suit within the local limits of the court in whose jurisdiction respondent No. 2 voluntarily resides or personally works for gain or carrying on business in view of impleadment of non-resident defendant No. 1. But the appellant ought to have obtained the leave of the court to file the suit at Jorhat since all the respondents are not resident of Jorhat. Therefore, clause (b) of Section 2 would offend the institution of suit at Jorhat by the appellants. In the context of passing off the materials, it was also argued, by Mr. C.K. Sarma Baruah that defendant No. 2 is simply as stockist and she was not carrying any business of the goods manufactured by the defendant No. 1 unless there is sale of the goods manufactured by the defendant No. 1 with a trade mark similar to the trade mark of the appellants, no cause of action can arise either partly or wholly. Though sub-section 2 of Section 34 of the Trade Marks Act provides an additional avenue for institutions of the suit by the appellants at the place where the plaintiff's (appellants) voluntarily reside or carrying on business or personally work for gain. No suit appears to have been filed against the respondents by the appellants within the local limits of the court within whose jurisdiction they (appellants) voluntarily reside or carrying on business or personally works for gain. It was submitted by Mr. C.K. Sarma Baruah that in the context of jurisdiction, the finding of the learned District Judge cannot be assailed of. It was obligatory on the part of the appellants to obtain leave of the court to file a suit at Jorhat when respondent No. 1 is a non-resident of Jorhat. Over and above when the respondent No. 2 did not sale the goods manufactured by the respondent No. 1 with a trade mark identical with or deceptively similar to the plaintiff's (appellants) trade mark, no cause of action is said to have been arisen at Jorhat. A mere stock of the goods manufactured by the respondent No. 1 cannot gave rise a cause of action for the suit. 17. Mr. A mere stock of the goods manufactured by the respondent No. 1 cannot gave rise a cause of action for the suit. 17. Mr. C.K. Sarma Baruah, therefore, emphatically submitted that the impugned order passed by the District Judge dismissing the application under Order 39 Rule 1 and 2 cannot be assailed. Suit was apparently filed by a non existing partnership firm and more so, the learned District Judge cannot assume jurisdiction to try the suit. 18. Contrary to the submissions advanced by Mr. C.K. Sarma Baruah, Mr. G.N. Sahewalla, learned Sr. counsel submitted that after retirement of Ravindra Kr. Agarwal and Sarita Agarwal, the partnership firm, M/s. Ravindra & Co. continued to do business with partner Smt. Asha Agarwal and her husband from the date of retirement, of Ravindra Kr. Agarwal and Sarita Agarwal, although no partnership deed was executed in writing, therefore, it would not be appropriate to say that on the retirement of Ravindra Kr. Agarwal and Sarita Agarwal, the partnership firm stood dissolved. It was further submitted by him that a partnership deed was executed in between Smt. Asha Agarwal and her husband, Sri Surendra Kr. Agarwal on 1-12-2008 who was subsequently modified vide rectification deed dated 8-12-2008 giving effect of the partnership firm with effect from 21-6-2008. He also argued that Ravindra Kr. Agarwal and Sarita Agarwal with mala fide intention dissociated themselves from the partnership firm with a view to constitute another partnership firm with their relations namely, Arvind Kr. Agarwal, Beena Agarwal, Ankit Agarwal and Rohit Agarwal and for that purpose they entered into a conspiracy with the respondent No. 3 to take away the business of the appellants. The "Bandar Dholak Chhap" was allowed to be used by the appellants by respondent No. 3 herein on payment of royalty at the rate of 11,000/- annually, which was later increased to Rs. 30,000/- annually and aforesaid royalty was paid to respondent No. 3 up to 2015 and, therefore, the respondents herein cannot manufacture tobacco with the trade mark "Bandar Dholak Chhap" and pass off. The act of the respondents caused infringement of the trade mark though not registered for which the appellants are entitled to file a suit for reliefs as provided under Section 135 of the Trade Marks Act, 1999 including injunction. The act of the respondents caused infringement of the trade mark though not registered for which the appellants are entitled to file a suit for reliefs as provided under Section 135 of the Trade Marks Act, 1999 including injunction. Since the respondent No. 2 are passing off the goods manufactured by respondent No. 1 using the trade mark of the appellants he being the resident of Jorhat a suit can also be instituted at Jorhat since one of the defendant resides voluntarily at Jorhat and cause of action has arisen at Jorhat. Therefore, it would have not been appropriate for the District Judge to hold that the Court of District Judge at Jorhat does not have jurisdiction to entertain the suit. 19. In view of the facts appearing in the face of the record and the arguments put forth by the counsel of the respective party, the primary issue before us would be whether the partnership firm M/s. Ravindra & Co. is still in existence or stood dissolved on and from 20-6-2008 if not at least from 15-7-2008. In this connection it would be appropriate to scrutinize the letters of the partners, namely, Ravindra Kr. Agarwal and Sarita Agarwal and also the letter of the appellant No. 1 Mrs. Asha Agarwal. Letters of Smt. Sarita Agarwal and Ravindra Kr. Agarwal are seemed to have been addressed Smt. Asha Agarwal, the appellant No. 1. Both the letters bear the date 4-7-2008. In both the letters it is indicated that the author of the letters retired as the partner from the partnership firm M/s. Ravindra & Co., Kaimganj with effect from 20-6-2008 and also intended that the partnership firm be dissolved. Appellant No. 1 by her letter addressed to Range Superintendent, Central Excise, Range, Kaimganj dated 15-7-2008 also dissociated herself as a partner from the partnership firm, M/s. Ravindra & Co. with effect from 15-7-2008. The aforesaid letter was accompanied by a copy of the letters written by Sri Ravindra Kr. Agarwal and Sarita Agarwal. By these letters the partners of the partnership firm M/s. Ravindra & Co. retired themselves. It is already stated herein before that the partnership firm M/s. Ravindra & Co. had three partners whose names are indicated above, therefore, on their retirement the partnership firm M/s. Ravindra & Co. automatically stood dissolved. Agarwal and Sarita Agarwal. By these letters the partners of the partnership firm M/s. Ravindra & Co. retired themselves. It is already stated herein before that the partnership firm M/s. Ravindra & Co. had three partners whose names are indicated above, therefore, on their retirement the partnership firm M/s. Ravindra & Co. automatically stood dissolved. Section 4 of the Partnership Act; 1932 deals with definition of "partnership", "partner", "firm" and "firm name", which provides as under: Partnership" is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individually "partners" and collectively "a firm", and the name under which their business is carried on is called the "firm name 20. A firm as such cannot be a member of partnership. A partnership is a relation, which subsists between persons but a firm is not a person, it is not an entity, it is merely collective name for an individuals which are members of the partnership. It is neither a legal entity nor as it a person. A firm name in truth is merely a cluster of individuals who composed the firm to constitute a partnership firm. There must be three elements: (i) a business; (ii) there must an agreement to share the profits of that business; (iii) business must be carried on by all or any one of the partners acting for all. In the context above it would appropriate to say that M/s. Ravindra & Co. was constituted by three members, namely, Sri. Ravindra Kr. Agarwal, Smt. Sarita Agarwal, Smt. Asha Agarwal, the appellant No. 1 to carry on business and to share profits from the same. Since there is no indication of the carrying of business of the partnership firm by one of them acting for all, in the circumstances it can be said rather held that business of the partnership firm was carried by all partners, Section 32 of the Partnership Act, 1932 speaks on the subject of retirement of a partner. Since there is no indication of the carrying of business of the partnership firm by one of them acting for all, in the circumstances it can be said rather held that business of the partnership firm was carried by all partners, Section 32 of the Partnership Act, 1932 speaks on the subject of retirement of a partner. It says that a partner may retire: (a) with the consent of all the other partners, (b) in accordance with an express agreement by the partners, or (c) where the partnership is at Will, by giving notice in writing to all the other partners of his intention to retire Therefore, under the three modes a partner of a partnership firm may retire from the firm. 21. M/s. Ravindra & Co. was a partnership at Will, therefore, any of the partners of the firm can retire from the partnership by giving a notice in writing to all other partners. It was held in catena of decisions (AIR 1945 All 332 ; AIR 1933 All 926; AIR 1921 Cal 722). By mere retirement of a partner, a firm is not dissolved but the retiring partner must give notice of his intention to dissolved the firm in order to bring effect a dissolution. In the decision reported in AIR 1960 Mad 457 it was held that where there are only two persons and one severes his relation with the business of the partnership there is dissolution and not retirement. Section 43 also provides the procedure for dissolution by notice of partnership at Will. It says is under: (i) Where the partnership is at will, the firm may be dissolved by any partner giving notice in writing to all the other partners of his intention to dissolve the firm. (ii) The firm is dissolved as from the date mentioned in the notice as the date of dissolution or, if no date is so mentioned, as from the date of the communication of the notice. In the decision reported in AIR 1976 Ghy. 12 it was held that when a partnership is at Will is formed it can come to an end by a notice of dissolution or abandonment by one of the partners. In the decision reported in AIR 1976 Ghy. 12 it was held that when a partnership is at Will is formed it can come to an end by a notice of dissolution or abandonment by one of the partners. If a partnership is at Will and one of the partners wishes to dissolved, the partnership firm and also acts in furtherance thereof by giving necessary notice, the moment said notice is issued and the moment the notice received by the other party, the partnership stands dissolved. 22. Herein in the instant appeal we have noticed that the partnership firm M/s. Ravindra & Co. was constituted with the partners namely, Sri. Ravindra Kr. Agarwal, Smt Sarita Agarwal and Smt. Asha Agarwal, the appellant herein. By letters dated 4-7-2008, Sri. Ravindra Kr. Agarwal, Smt. Sarita Agarwal declared their retirement on and from 20-6-2008 and also intended that partnership firm be dissolved from that date. Again Smt. Asha Agarwal, the appellant herein who claims to have continued with the partnership firm alongwith her husband also by her letter dated 15-7-2008 retired from the partnership firm which was addressed to the Range Superintendent, Central Excise Range, Kaimganj. Therefore, the partners indicated intention to retire from the partnership firm and also expressed their intention that the partnership firm be dissolved. Letters dated 4-7-2008 were addressed to Smt. Asha agarwal, the appellant No. 1 herein. However, the letter dated 15-7-2008 written by Smt. Asha Agarwal to Range Superintendent, Central Excise Range, though is not addressed to other partners, the same accompanied with the copy of the letters written to her by the two other partners. While in a partnership firm having three persons two of them retired from a particular date and wished dissolution of the same from the same date. The partnership firm cannot exist since a firm is a collective names on individuals. On the retirement of Ravindra Kr. Agarwal and Smt Sarita Agarwal, the partnership firm M/s. Ravindra & Co. therefore cannot continue in its name and it must stood dissolved on and from the date indicated in the letters dated 4-7-2008. The partnership firm cannot exist since a firm is a collective names on individuals. On the retirement of Ravindra Kr. Agarwal and Smt Sarita Agarwal, the partnership firm M/s. Ravindra & Co. therefore cannot continue in its name and it must stood dissolved on and from the date indicated in the letters dated 4-7-2008. Thus, from the letters it would be apparently dear that the firm constituted by the three persons stood dissolved on and from 20-6-2008 if not at least from 15-7-2008 as indicated in the letter dated 15-7-2008 addressed to Range Superintendent of Central Excise Range, Kaimganj by Smt. Asha Agarwal, appellant No. 1 herein. 23. The partnership firm which constituted on 1-12-2008 by Smt. Asha Agarwal and her husband in the name of the earlier firm, which stood dissolved cannot give a retrospective effect by rectification dated 8-12-2008 with effect from 20-6-2008. It has already been discussed that a partnership firm at Will stands dissolved if one of the partners wishes to dissolved the partnership and acts in furtherance thereof by giving necessary notice; the moment the said notice is issued and the moment notice received by the other party. Therefore, for dissolving a partnership firm every member is not required to serve notice to dissolve the partnership firm indicating his/her intention. If a notice is issued by him indicating his intention to have the dissolution of the firm on the date indicated therein, the firms stands dissolved on the very date of issuance of the notice from the date on which the notice is received by the other party. We have already come across that both Ravindra Kr. Agarwal and Sarita Agarwal served notice to Smt. Asha Agarwal that they are retiring from the partnership firm on and from 20-6-2008 and desired the dissolution of the firm from the date. Therefore, on the issuance of the notice by these two persons, the partnership firm stood dissolved from the date of the notice. Therefore, the continuance of the partnership firm by one of the partners namely, Asha Agarwal cannot be argued at all, in my considered view the partnership firm M/s. Ravindra & Co. stood dissolved and the firm, therefore, cannot bring a suit for infringement of trade mark or right in the trade mark or for passing off. Therefore, the continuance of the partnership firm by one of the partners namely, Asha Agarwal cannot be argued at all, in my considered view the partnership firm M/s. Ravindra & Co. stood dissolved and the firm, therefore, cannot bring a suit for infringement of trade mark or right in the trade mark or for passing off. It is found from the record that the Title Suit No. 3 of 2008 was instituted in the court of District Judge, Jorhat on 10-9-2008, which was registered on the subsequent date i.e. on 11-9-2008, which apparently goes to show that the suit was filed after dissolution of the firm namely, M/s. Ravindra & Co. The constitution of the firm on 1-12-2008 under the name M/s. Ravindra & Co., giving retrospective effect from 21-6-2008 would not come in aid of the appellants and therefore, the suit cannot be maintained and application as well. In view of the above the decision reported in the following cases and relied on by Mr. G.N. Sahewalla would not come in the aid of the appellants: (i) (2002) 3 SCC 65 : 2002 (24) PTC 1 (SC); Laxmikant V, Patel v. Chetanbhai Shah and Another. (ii) (2006) 9 SCC 41 : 2006 (32) PTC 1 [SC]; Dhodha House v. S.K. Maingi with Patel Field Marshal Industries and another v. P.M. Diesel Ltd. (iii) (2004) 3 SCC 688 ; Exphar Sa and Another v. Eupharma Laboratories Ltd. and Another. (iv) (2000) 3 SCC 250 : 2000 PTC (20) 147 (SC); Haldiram Bhujiawala and Another v. Anand Kumar Deepak Kumar and Another. This court therefore, finds no force in the argument advanced by Mr. G.N. Sahewalla, learned Sr. counsel for the appellant. 24. Mr. C.K. Sarma Baruah while arguing also submitted that the respondent No. 3 allowed the appellants to use the trade mark "Bandar Dholak Chhap" on payment of royalty and in that view of the matter the appellants can be term as permissive user of the trade mark. That apart M/s. Ravindra & Co. of which Smt. Asha Agarwal, the appellant No. 1 and her husband are partners is not a registered partnership firm, not only that the trade mark "Bandar Dholak Chhap" is also not a registered trade mark, therefore, a permitted user cannot bring a suit against infringement. Section 53 of the Trade Marks Act, 1999 provides the law therefor, which reads as under: 53. Section 53 of the Trade Marks Act, 1999 provides the law therefor, which reads as under: 53. No right of permitted user to take proceeding against Infringement. -- A person referred to in sub-clause (ii) of clause (r) of sub-section (1) of section 2 shall have no right to Institute any proceeding for any Infringement. 25. Fruther, Mr. C.K. Sarma Baruah, learned Sr. counsel appearing for the respondent No. 1, 1A to ID that the power of the appellate court to exercise its jurisdiction against a order of injunction passed under Order 39 Rule 1 and 2 is very limited. He argued that the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principle of law regulating the grant or refusal of the injunction. It was argued by him that the suit being instituted by a non-existent firm, nothing remains to discuss about the three golden principles necessary for grant of injunction not to speak of the jurisdiction. The learned trial Judge rightly dismissed the application under Order 39 Rule 1 and 2 CPC, Mr. C.K. Sarma Baruah argued. Mr. Baruah to buttress his argument also relied in the decision rendered in the case by the Apex Court in Wander Ltd. And Another v. Antox India P. Ltd., 1990 (Supp) SCC 727 : 1991 (11) PTC 1 (SC). In paragraph-14, the Apex Court observed as under: 14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first Instance and substitute Its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant of refusal of interlocutory injunctions, An appeal against exercise of discretion is said to be an appeal on principle, Appellate court will not reassess the material and seek to reach a conclusion different from the one reach by the court below if the one reached by that court was reasonably possible on the material. The appellant court would normally not be justified in Interfering with the exercise of discretion under appeal solely on the ground that if It had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify Interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J, in Printers (Mysore) Private Ltd. v. Pothan Joseph. (SCR 72i) ....These principles are well established, but as has been observed by Viscount Simon In Charles Osenton & Co. v. Jhanaton'., the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles In an individual case'. The appellate judgment does not seem to defer to this principle, 26. Mr. N. Choudhury, learned counsel appearing for and on behalf of the respondent No. 2 while arguing supported the points raised by Mr. C.K. Sarma Baruah, learned Sr. counsel for the respondent No. 1, 1A to ID. In addition to that Mr. Choudhury, submitted that no injunction can be granted when the plaintiff has personal interest in the matter. Mr. Choudhury, on this point took support from Section 41 of the Specific Relief Act, 1963. It was argued by him that when the partnership firm stood dissolved by the partners thereto, the said partnership firm cannot bring a Suit for infringement of the trade mark. A suit cannot be brought in the name of a dissolved partnership firm. 27. Taking into consideration of all the matters in its entirety, the submissions-advanced by the learned counsel for the respective party and the law laid down, therefor, this court is of considered view that the impugned order suffers from no error or illegality and should stand in law. 28. This appeal stands dismissed. No cost.